2d 273
Upon the filing of the notice of appeal, Appellees moved for dismissal on the
ground that the notice was untimely. We denied the motion without prejudice to
renewal at time of argument on the merits.
The summary judgment was entered on January 11, 1961. The record shows
that a copy of the journal entry of judgment was received by Appellant's local
counsel of record in Wichita, Kansas forthwith, and the records of the District
Court Clerk show that notice and copies of the journal entry of judgment were
mailed to all of the attorneys of record, including David M. Palley, Appellant's
chief counsel in New York City, New York. No attempt to appeal was made by
Appellant within the thirty-day period provided by Rule 73(a), Federal Rules of
Civil Procedure, 28 U.S.C.A. but on March 8, 1961, after the time for appeal
had expired, Mr. Palley filed an affidavit asking the trial court to extend the
time for appeal on the ground that he had not received notice of the entry of
judgment. On that date, the trial court issued an ex parte order extending the
time to appeal for thirty days and Appellant's notice of appeal was filed within
the extended time. Appellees' motion in the trial court to set aside the order
extending the time to appeal was denied on the basis that the filing of the notice
of appeal had divested that Court's jurisdiction.
4